Ecclesiastical law

Month: August, 2012

The First Modern Faculty Case

Peek v Trower (1881) 7 Probate Division 21, Court of the Arches

The rector and churchwardens wished to make significant internal alterations to the parish church, to make it more convenient for the parishioners.  The vestry approved and the necessary funds were available.  However, a significant number of parishioners (60 or 70) opposed the alterations.

Unlike many late 19th century faculty cases there was no issue of worship or ritual involved.  Nor did the proposed alterations contravene any law or property right.  Nor did they relate to the necessary repair of the church.  Nor were they concerned with the accommodation of larger numbers of worshippers .  They were, as Lord Penzance, the Dean of the Arches, said ‘all matters of taste and fancy’ (p.30), as most modern faculty cases are.

Peek v Trower may even be described as the first modern faculty case.  Lord Penzance admitted that ‘I have looked into the reports of the decisions of my predecessors in search of … principles which should guide me, but without much success’ (p.27).

He was therefore obliged to formulate principles of his own.  He held that, in deciding such a case, he had to decide between two principles, or presumptions:

(1) the presumption in favour of change and

(2) the presumption against change.

According to (1), a dealing with a church should be permitted if it is adequately funded and will not ‘work mischief … impair the capacity, the fitness or the convenience of the church for the purposes of public worship’ (p.27). 

According to (2), ‘the burden is cast upon [the petitioner] to shew that [the dealing] will make things better than they are …’.  There had to be a positive case for change.  Moreover, ‘the Court ought to be satisfied that there is a general desire on the part of the parishioners, or at least of the actual worshippers, being parishioners, that the change should be made’ (p.28). 

Lord Penzance adopted principle (2), the presumption against change.  Applying this principle to the facts of the case he refused a faculty.  There was significant parochial opposition to the proposed alterations.  They ‘[had] been planned and devised by a very small number of those interested in the church’ (p.29).  There was no evidence that the present furnishings of the church were uncomfortable.

Although Lord Penzance attached much significance to parochial opposition, this factor was not decisive: ‘I am far from … lay[ing] down as a rule that the approval of an absolute majority of parishioners must in all cases be obtained … There are many matters to be taken into consideration’ (p.29).  In particular ‘The character and true motives of the opposition have to be ascertained …’.

Lord Penzance revisited the question of parochial opposition to a proposed dealing with the parish church in Nickalls v Briscoe (1892) Probate Division 269.  A couple wished to donate a stained-glass window to their parish church in memory of their deceased daughter and her four children, who were all deceased as well.  The window was approved by the vestry, but, as in Peek v Trower, there was significant opposition within the parish.  A petition against the window was allegedly signed by more than 200 people.

Perhaps moved by the tragic circumstances giving rise to the case, Lord Penzance held that a faculty should be granted for the window, notwithstanding the parochial opposition.  However, he was confronted with his own earlier decision in which he had strongly emphasized the importance of parochial support for a proposed alteration.

He drew a rather dubious distinction.  Peek v Trower had concerned a proposed alteration which ‘could not be supported on its own merits as an improvement’ (p.283).  By contrast, the proposed window in this case was intrinsically, or perhaps aesthetically, better than the proposed alteration in Peek v Trower.

The evidence in Nickalls v Briscoe suggested that the opposition was not to the window itself, but rather to the petitioners personally.  Lord Penzance found that ‘There have … been long-standing differences between parties, resulting in a general feeling of antagonism’ (p.282).  The antagonism was based on churchmanship.  The petitioners were suspected of ritualism.

Lord Penzance held that the alleged ritualism of the petitioners was irrelevant: ‘the opinions of the parish … should be opinions formed in relation to the proposed alteration itself … and not … upon the motives or objects of those who propose it’ (p.283).

Thus parochial opposition to a proposed dealing with a church is relevant only if it is based on relevant and reasonable grounds.  Opposition prompted by malice or clashes of personality or unfounded fears is not a reason to refuse a faculty.  Lord Penzance found that the proposed window had ‘no doctrinal significance’, whatever the ritualist sympathies of the petitioners.

Today Nickalls v Briscoe is usually cited for Lord Penzance’s dicta that the parish church ‘belongs not to any one generation [of parishioners]’ and suggesting that, for this reason, ‘the law has forbidden any structural alterations … save those which are approved by a disinterested authority in the person of the Ordinary’.

However, it is clear from their context that these remarks were made to rebut the suggestion that the decision in the case was inconsistent with Peek v Trower.  In fact, Lord Penzance never suggested in Peek v Trower that parochial opposition was decisive in a faculty case.  Indeed, as we have just noted, he had expressly denied this.

Conservation v Pastoral Care

The oft-quoted dicta in Nickalls v Briscoe, though unobjectionable in themselves, have been used (or misused) to justify the modern ‘conservationist’ approach to the faculty jurisdiction, and to undermine the pastoral approach adopted by Lord Penzance.

The conservationist approach follows Lord Penzance’s ‘presumption against change’ but takes it out of its pastoral context.  The result is secular, materialistic and somewhat authoritarian.  It emphasizes the ‘conservation’ of the church building as an end in itself.  The assertion that the church does not belong to the present generation of parishioners serves to imply that the ‘disinterested’ ecclesiastical judges and the diocesan advisory committees and various ‘national heritage’ bodies know best.

It is true that the Care of Churches and Ecclesiastical Jurisdiction Measure 1991, which now mostly regulates the faculty jurisdiction, begins, at s.1, with a warm ‘general principle’ that ‘any person or body carrying out functions of care and conservation relating to churches shall have due regard to the role of a church [building] as a local centre of worship and mission’.

However, in St. Luke’s, Maidstone (1995) Family 1, Sir John Owen, one of Lord Penzance’s successors as Dean of the Arches, rejected the suggestion that worship and mission was the paramount consideration in faculty cases (p.7).  He further held that s.1 of the 1991 Measure did not even apply to the ecclesiastical courts ‘since they are not … carrying out functions of care and conservation’.  Presumably he meant that the ecclesiastical courts merely oversee those who do exercise such functions.  (Dean Owen was also the author of the conservationist ‘necessity’ test for faculty applications).

In St. Michael’s, Tettenhall Regis (1995) 3 Weekly Law Reports 299, a diocesan chancellor went so far as to hold that ‘I should not treat the worship and mission factor [in s.1] as in any way paramount’ (p.308). 

An unpublished dissertation by Desmond Carnelley ‘The Faculty Jurisdiction in the Church of England and the Future of the Ecclesiastical Exemption’ (LL.M, Cardiff University, 2002) offers a powerful critique of the ‘conservationist’ approach to the faculty jurisdiction. 

The excessive emphasis on the care and conservation of listed churches causes the pastoral aspect of the faculty jurisdiction to become neglected.  Carnelley draws an important distinction between the conservation and the preservation of ancient churches. 

Conservation demands ‘the design, appearance and setting of the edifice as it was originally built’.  There is at least a tension, if not a conflict, between conservation and pastoral need: ‘as a living, developing organism, change is of the essence of the church … in order to serve new generations of worshippers’ (p.21).

Preservation, unlike conservation, demands only ‘the upkeep … of all historic buildings, so that they are kept free from … decay’.  This does not conflict with pastoral need, indeed it serves pastoral need.

Carnelley also draws attention to the financial burden that the ‘conservationist’ approach imposes on the Church, involving as it does ‘payment to archaeologists, conservation officers, special consultants and the like … [and] the expense of advertising [faculty proceedings]’ (p.37).

Carnelley argues that ‘two basic questions underlie any debate about the care and maintenance of Anglican Churches

[1] To whom does these buildings belong? and

[2] What is the main purpose and function of a church building – what is it for?’.

These are indeed the essential questions.  The case of Britton v Standish (1705) 90 English Reports 976 tells us that parish churches are for the ‘ease and benefit’ of the parishioners.  Burder v Veley (1840) 113 English Reports 801 draws attention to the parish church’s function as a municipal amenity.  The parish church is the parishioners’ church.  It does in a sense belong to the parishioners. 

However, Griffin v Dighton (1864) 122 English Reports 767 makes clear that the parish church still exists for a particular purpose, the worship of God in accordance with the Church’s religion.

In Beckwith v Harding (1818) 106 English Reports 187 the churchwardens of a certain parish claimed the right to deal with their church without the permission of the Church authorities, pleading a local custom.  Rejecting the claim, Lord Chief Justice Ellenborough pointed out that such a custom would in effect secularise the parish church (p.1290).  If the parishioners were free to deal with their church as they pleased, without reference to the Church authorities, the church would cease to be a church.

The purpose of the faculty jurisdiction is therefore to safeguard and promote the purpose of the church.  Correctly exercised, the jurisdiction will respect the parishioners’ interest, while ensuring that they use their church in accordance with its proper purpose.  Interest and purpose both demand the preservation of the church building.  However, they may also demand expedient alterations.

The Court of Ecclesiastical Causes Reserved: England’s Inquisition

Origin and Jurisdiction

In contrast to the diocesan (consistory) courts and the provincial courts of the Church of England, which date from mediaeval times, the Court of Ecclesiastical Causes Reserved (‘CECR’) is not quite 50 years old.  It was first constituted by the Ecclesiastical Jurisdiction Measure 1963, following the recommendation of a Church of England report Ecclesiastical Courts, Principles of Reconstruction which was published in 1954.

The ’causes reserved’ to the CECR, which it was created to decide, are those which concern doctrine, ritual and ceremonial.  Ecclesiastical law still makes a distinction between cases involving doctrine, ritual and ceremonial (the so-called ‘reserved matters’) and other legal cases. 

The CECR comprises two senior judges, who must be communicants, and three diocesan bishops (1963 Measure, s.5).  The CECR’s jurisdiction is regulated by s.10 of the 1963 Measure:

(1) it has original disciplinary jurisdiction in matters of doctrine, ritual and ceremonial. 

(2) it may hear an appeal (described as a suit of duplex querula) against a bishop’s refusal to institute a clergyman to a benefice, where the refusal is based on a matter of doctrine or ritual.

(3) it may hear an appeal from a consistory court in any faculty case ‘involving matter’ of doctrine, ritual or ceremonial. 

S.45(3) of the 1963 Measure provides that, in exercising these three jurisdictions, the CECR ‘shall not be bound by any decision of the … Privy Council in relation to matters of doctrine, ritual or ceremonial’. 

Cases involving ritual and ceremonial once caused acute legal difficulty.  In 1954 and 1963 public worship was still nominally regulated by the Act of Uniformity 1662 and by the Privy Council’s strict interpretation of the rubrics of the Book of Common Prayer in the 19th century.  It had long been recognised that the 1662 regime was unenforceable but Parliament rejected a revised Prayer Book in the 1920s. 

Having failed to persuade Parliament to abolish the 1662 regime, the Church at least freed itself from the Privy Council’s decisions concerning that regime, by means of the CECR and s.45(3). 

The CECR is progressive in another respect.  It exercises the same disciplinary jurisdiction over bishops and lesser clergy.  This demonstrates that everyone is equal before the law regardless of status.  The Clergy Discipline Measure 2003, by contrast, retains the quasi-feudal distinction between the discipline of bishops and that of lesser clergy, by providing that complaints against the former are to be heard by the Vicar-General’s Court, rather than by a disciplinary tribunal (as for other clergy).

The anarchic state of the law made it virtually impossible to treat questions of liturgical practice in the same way as other legal questions.  However, not long after the 1963 Measure, the 1662 regime was finally abolished, and a new regime of public worship introduced, by the Worship and Doctrine Measure 1974. 

The 1974 Measure should have sufficed to remove any need for a distinction between questions of worship and doctrine and other matters.  Yet the distinction has persisted since 1974.

However, the 1954 report argued that there was another distinction between reserved matters and other cases, apart from the 1662 regime:

‘The differentiation [of reserved matters from other cases] … rests upon a solid foundation.  The burden cast upon a tribunal when an issue is factual differs in essence from that when the issue involves intellectual appreciation and spiritual discernment’ (p.48).

This point is hard to accept.  A reserved case will involve facts just as much as any other.  It is possible that the facts may be more complex than in an ordinary case, requiring expert evidence from theologians or historians, but they are still facts.  All cases require ‘intellectual appreciation and discernment’ on the part of the judges if they are to be decided justly.

The distinction between reserved matters and other misconduct was discussed by the Court of the Arches in the case of Archdeacon of Cheltenham v Bland (1972) 1 All England Reports 1012.  One of the charges of neglect of duty was the Reverend Mr Bland’s alleged refusal to baptise a baby.  It was suggested that a refusal to baptise that was based on doctrinal grounds might constitute a ‘reserved’ matter, an offence against doctrine, and therefore not within the Court of the Arches’ jurisdiction.

The Court rejected this suggestion.  It held that ‘refusal to baptise a child is not a doctrinal offence … It is concerned with pastoral work and activity’.  The defendant’s motive or intention is irrelevant to the question whether an offence is doctrinal or not.  Only the defendant’s alleged conduct is relevant.

Likewise it is argued that, if an incumbent disobeys the bishop’s directions under canon B5(4), concerning the use of forms of service, this should be treated as an offence of disobedience under the Clergy Discipline Measure 2003, and not as a reserved offence under the 1963 Measure, even if the disobedience was prompted by the incumbent’s opinions on ritual and ceremonial.

The exclusion of ‘heresy’ cases from the Clergy Discipline Measure 2003 does not necessarily assist clergy of questionable orthodoxy.  The protection conferred on licensed clergy (as distinct from beneficed clergy) by s.8(2) of the 2003 Measure applies only to alleged misconduct within the scope of that Measure.  The Church of England report Under Authority (1996) records the case of a clergyman whose licence was revoked ‘because his [religious] views were considered to be incompatible with his diocesan role’ (p.4). 

It will be interesting to see how, if at all, the ‘capability procedure’ inaugurated by s.2(1) of the Ecclesiastical Offices (Terms of Service) Measure 2009 will be applied to clergy and lay ministers whose doctrinal opinions cause offence.

Doctrinal Disputes

S.45(3) is now somewhat otiose in relation to ritual and ceremonial, since these are regulated by the 1974 regime.  The Privy Council was concerned to enforce the 1662 regime, which is now abolished.  S.45(3) is therefore relevant only to doctrine. 

Halsbury’s Laws identifies the following ‘doctrinal’ offences in ecclesiastical law: heresy, blasphemy (‘avowing blasphemous and impious opinions contrary to the Christian religion’), depraving the Book of Common Prayer and maintaining doctrines repugnant to the 39 Articles (4th edition, volume 14, para 1354).  The 1996 report Under Authority recommended a new offence of ‘teaching, preaching, publishing or professing doctrine or belief incompatible with that of the Church of England’ (p.53), but the suggestion was not followed.

Although the CECR is not ‘bound’ by the decisions of the Privy Council, there is nothing to prevent it from considering such decisions. 

There may be only four reported Privy Council decisions on doctrine.  The most famous was Gorham v Bishop of Exeter (1849-50) 163 English Reports 1221.  The Bishop refused to institute Mr Gorham to a benefice in his diocese because, after a lengthy examination, he found that Mr Gorham’s views on infant baptism were incompatible with the Church’s doctrine.  Mr Gorham took proceedings in the Court of the Arches to compel the Bishop to institute him.

The Court held that, to decide the question of infant baptism, ‘All that the Court is called upon to do is … ascertain whether the Church has determined any thing upon the subject’ (p.1238).  It continued:

‘With a view to ascertaining the doctrine of the Church on any subject … the 39 Articles are, in the first place, to be consulted: and when … they leave nothing short, but speak on any point of doctrine plainly, precisely and definitely, then there can be no occasion to search further … prima facie then the 39 Articles are the standard of doctrine’ (pp.1240-1).

Having examined the relevant Articles the Court concluded that ‘we find no solution to the point [about infant baptism]’.  It therefore turned to the forms of service in the Prayer Book.  Having studied these, it concluded that Mr Gorham ‘did oppose the doctrine of baptismal regeneration’ (p.1257). 

As is well known, Mr Gorham appealed to the Privy Council and won his case.  The Privy Council overruled the Court of the Arches and the Bishop of Exeter, and held that Mr Gorham’s views were not incompatible with Church doctrine.

However, although they came to different conclusions, both tribunals agreed on the legal construction of the formularies in matters of doctrine.  The Privy Council agreed with the Court of the Arches that the 39 Articles are the primary standard of doctrine.  The Articles are the Church of England’s ‘code of faith’.  If the Articles are silent or inconclusive, the Book of Common Prayer may be consulted.

The Privy Council was more sensitive than the Court of the Arches to the character of the Prayer Book as a manual of public worship.  It held that only the ‘dogmatical’ parts of the Prayer Book are declaratory of doctrine.  By contrast the ‘devotional’ parts of the Prayer Book, and its rubrics, are not evidence of doctrine, unless clearly supported by the 39 Articles.

As an example of the distinction between the ‘dogmatical’ and ‘devotional’ parts of the Prayer Book, the Privy Council cited the burial service, which on its wording seems to promise eternal life for everyone, even though this is not the Church’s doctrine.

The other 19th century doctrinal cases were Williams v Bishop of Salisbury (1864) 15 English Reports 943, Sheppard v Bennett (1872) Law Reports 4 Privy Council 350 and Voysey v Noble (1870-1) Law Reports 3 Privy Council 374.

Unlike Gorham, which was a civil dispute, the other three cases were ‘criminal’ prosecutions for alleged unorthodoxy.  In the first two cases, the defendants were acquitted.  As a commentator noted, the Privy Council ‘while narrowly restricting the limits of permissible ritual, enlarged the latitude of permissible belief’ (C.Y Sturge, Points of Church Law (1907), p.111).

However, in Voysey v Noble, the Reverend Mr Voysey was found guilty of having ‘maintained and promulgated doctrines contrary and repugnant to, or inconsistent with, the Articles of Religion and formularies of the Church of England’, and was deprived of his living.

It was suggested in the Williams case that a prosecution for heresy must

‘(1) distinctly state the [heretical] opinions which the clerk has advisedly maintained

(2) set forth the passages in which these opinions are stated

(3) specify the doctrines of the Church which such opinions or teaching of the clerk are alleged to contravene and

(4) the particular Articles of Religion, or portions of the Formularies, which contain such doctrines’ (p.961).

A Lesson for Lawyers

It is salutary for ecclesiastical lawyers to study the history of the CECR.  Ecclesiastical courts are of particular interest to ecclesiastical lawyers, for obvious reasons.  They are the special preserve of lawyers.  They are the one means by which lawyers can take their own decisions concerning the Church, rather than merely seek to influence decisions taken by others.  An ecclesiastical lawyer’s preferred solution to a particular problem within the Church is likely to involve the creation of a new court or tribunal.

There is therefore an enormous volume of law and legal commentary concerning ecclesiastical courts.  Yet this is out of all proportion to their practical function in the modern Church.  With a slight hint of shock, Norman Doe wrote of his researches into the law of the Anglican Communion that ‘The evidence from decisions of Church courts is weakest … available in only half a dozen Churches … in several Churches, replies indicated that Church courts simply do not sit’ (Canon Law in the Anglican Communion (1998), Clarendon, Oxford, p.5).

The likely reason for this dearth of material is that bishops and other ecclesiastical officeholders, and indeed churchpeople generally, do not share the lawyers’ natural enthusiasm for Church courts.  Like all sensible people, they try to avoid the expense and unpleasantness of litigation if they possibly can.

The experience of the CECR, above all, shows that it is one thing to establish a new tribunal and another to make use of it.  The learned authors of the 1954 report clearly had high ambitions for their brainchild.  They argued that the proposed new Court ‘must possess … such spiritual authority as will lead the Church as a whole not only to accept but to welcome its pronouncements on the vital matters with which it is to deal’ (p.53).

Nor did the 1954 report overlook the burden that the new Court would place on the resources of the Church.  It would require the assistance of ‘assessors, theologians … and liturgists … the assembly of such a Court from … one diocese [only] would be impossible and would … tax the resources of a province if the hearings were frequent or protracted’.  Thus there should be ‘one such Court … for the whole Church of England …’ (p.54).

True, the Church did adopt the proposal for the CECR, though nearly a decade after the report was written.  Yet in the half century since then the CECR has apparently met only twice, on both occasions to hear appeals in faculty cases.  No prosecution for a reserved offence has ever been brought under the 1963 Measure.  The ambitions of the CECR’s promoters have been disappointed, to put it mildly.  It is likely that few churchpeople have even heard of it.

The two reported faculty cases are St Michael and All Angels, Great Torrington (1985) Family 81 and St. Stephen’s Walbrook (1987) 2 All England Reports 578.  The Walbrook case is notable, not for any doctrinal pronouncement, but for the judges’ powerful critique of the test of ‘necessity’ devised by the ecclesiastical courts for faculty applications.  However, this powerful critique has been studiedly ignored by the ecclesiastical courts for the last 25 years.

Ecclesiastical Corporations

The Corporation Aggregate

In Foundations of the Conciliar Theory (Cambridge University Press 1955), Brian Tierney describes how the constitutional structure of the mediaeval Church centred on the corporation.

The early Church regarded itself as the Body of Christ (p.138).  The bishop was the personification or representative of the Church (cf. pp.125-6).  Drawing on Roman law, mediaeval canonists developed these primitive theological concepts into a highly complex doctrine of corporate governance.

The mediaeval Church was ‘a federation of semi-autonomous units, of innumerable greater or lesser corporate bodies.  Bishops, abbeys and priories, colleges, chantries and guilds, religious orders, congregations and confraternities’ (p.97).  A mediaeval bishop, unlike a modern Church of England bishop, was usually ex officio the head of his cathedral chapter.

Discussion of corporate governance focused on the respective powers of the head of the corporation and the members of the corporation as a whole (for example, a bishop and chapter).  Could the head unilaterally ‘bind’ the whole body?  Was he obliged to obtain the members’ consent to a particular decision, or was it sufficient merely to consult them, to take their counsel (p.109)?

As the key to the control and enjoyment of property, corporate rights were jealously guarded and disputed, creating ‘a rising flood of litigation in the high middle ages’ (p.97).  Every corporation had its own peculiar customs and foundational charters, which required judicial investigation if there was a dispute.

This mediaeval style of corporate governance, based on local custom and special privilege, is still discernible in the constitutions of English cathedrals and Oxbridge colleges.

The general trend of the mediaeval litigation apparently favoured the members of the corporation against the head.  It was a force for collegiality, and against autocracy.  Mediaeval canon law effected ‘a gradual extension and systematization of the rights of the members of the corporation in relation to its head’ (p.130).  From this mediaeval development we can trace the distinctive autonomy that English cathedrals retain to this day.

The Corporation Sole

However, with the exception of cathedrals, the governance of the modern Church of England bears little resemblance to the mediaeval corporatism described by Tierney.  The post-Reformation Church was characterised by a rather different corporation, the corporation sole.

Incumbents of benefices, bishops and various ecclesiastical dignitaries are said to be corporations sole.  A corporation sole effectively divides a single human being into two legal persons.  The Reverend John Smith may be appointed Vicar of Barchester.  As such, he is both a physical person (John Smith) and a corporation sole (Vicar of Barchester).

The origin of the corporation sole was discussed by F.W Maitland in an article published in 1900 (vol 16 Law Quarterly Review, p.335).  Maitland noted that a corporation sole is anomalous for two reasons:  

(1) it is not a fully independent legal person.  A corporation aggregate of the mediaeval type, like a modern limited company, has an existence independent of its members.  The corporation sole depends for its existence on a particular physical person (for example, a bishop or incumbent).  If the bishop or incumbent dies or resigns the corporation sole cannot continue.  It is automatically dissolved, and is ‘reconstituted’ only when a new bishop or incumbent is appointed.

(2) a corporation sole comprises only one physical person, not a group or college of persons.  Yet a corporation generally implies a collegiate body of persons.

It might be logical to reconstitute the corporation sole as a purely fictitious person, like a corporation aggregate or modern limited company.  This never happened, according to Maitland, bcause it ‘would have necessitated a breach with traditional ideas of the parson’s estate’.  The parson was perceived as a landowner, not merely as a steward or administrator of Church property, even though the word ‘rector’ means steward.

The ecclesiastical corporations described by Tierney originally held their property in common.  However, Maitland relates that these corporate tenures began to disintegrate in the later middle ages, as bishops, deans and other chapter members acquired property entitlements that were independent of each other.  Hence the need for a corporation sole.

According to Maitland, the notion of the incumbent as a corporation sole was largely Sir Edward Coke’s idea.  (Coke lived from 1552 to 1634, and so post-dated the break with Rome.)  Coke drew on some slim 16th century authorities in support of his theory.  There are no pre-16th century authorities.  Thus the corporation sole is unknown to Roman Catholic law.

Maitland attributes the general acceptance of Coke’s corporate theory to its flexibility.  It prevented the incumbent from squandering or alienating benefice property, giving it to his family, to the prejudice of his successor and the Church.  However, it also gave the incumbent sufficient ownership to protect the property against trespassers and despoilers.

Modern legislation affirms that incumbents remain corporations sole (Mission and Pastoral Measure 2011, ss.34(2) and 37(5)).  The Ecclesiastical Offices (Terms of Service) Measure 2009 replaced the old ‘parson’s freehold’ with ‘common tenure’, but still affirmed that former freeholders remain corporations sole (s.9).

However, corporations sole are rather superfluous in the modern Church of England.  Much of their traditional property has been taken away from them.  Benefice glebe now vests in the local diocesan board of finance, no longer in the incumbent (Endowments and Glebe Measure 1976, s.15).  As originally drafted, the Terms of Service Measure provided for the transfer of parsonages to the legal ownership of the parsonages board, but the General Synod rejected this provision.

Nevertheless. although the incumbent remains freeholder of the parsonage, the freehold is fairly nominal.  Tenure of the parsonage is closely regulated by statute law, and resembles that of a modern tenant.  The incumbent’s rights over the parish church and churchyard are also closely regulated by statute.  Church and churchyard are, of course, subject to the ever-vigilant jurisdiction of the ecclesiastical courts.

Bishops do not seem to have any corporate property nowadays.  Most episcopal property vests in the Church Commissioners.  The Episcopal Endowments and Stipends Measure 1943 empowered the Commissioners (who were then the Ecclesiastical Commissioners) to prepare schemes vesting the official residence and endowments of every see in themselves.  They could then lease the residence back to the bishop for his occupation, and pay him an ‘appropriate’ stipend.

The ironic consequence of the 1943 Measure is that the bishop’s proprietary status became inferior to that of many of his clergy.  Rectors remain the freeholders of their churches, churchyards and residences, whereas the bishop is the mere tenant of the Commissioners.  The cathedral, which is the bishop’s church, vests in the cathedral corporation, a statutory body comprising the chapter, the cathedral council and the college of canons (Cathedrals Measure 1999, ss. 13, 9(1)(a)).

Modern Church authorities with responsibility for Church property are generally incorporated by statute.  Thus parochial church councils and diocesan parsonages boards and patronage boards are statutory corporations (Parochial Church Councils (Powers) Measure 1956, s.3: Repair of Benefice Buildings Measure 1972, s.1(5); Patronage (Benefices) Measure 1986, s.26(1)).

The diocesan board of finance must be incorporated as a limited company under the Companies Acts (Diocesan Boards of Finance Measure 1925, s.1(2)).  The Archbishops’ Council is a body corporate (National Institutions Measure 1998, sch.1.2.8).

However, the synods of the Church of England, the General Synod and the diocesan and deanery synods, are not corporations.  Nor is the annual parish meeting.

Persons and Things

In modern Roman Catholic law, as found in the Code of Canon Law 1983, corporations (described as personae iuridicae, juridical persons) may be

(1) of persons or

(2) of things (rerum).

A corporation of persons must have at least three members (canon 115.2), so there can be no corporations sole.  Corporations of things (also known as autonomous foundations) resemble trusts.  They must be directed by at least one trustee or by a college of trustees (115.3).  The trustees ‘act … as the directing personality of the collection of inanimate goods’ (Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.82).

Unlike an English trust, a foundation may incorporate a purely spiritual thing, not merely real and personal property.

Although the corporation sole seems to be unknown to modern Roman Catholic law, at least one Roman Catholic officeholder uncommonly resembles a corporation sole – the Pope himself.

Tierney relates that the papacy did not fit easily into the corporate, collegial structure of the mediaeval Church.  The absolute personal sovereignty claimed for the Pope jarred with a constitutional structure in which authority was exercised by a group rather than an individual, and in which the power of the head was limited.

There were two possible candidates for a papal ‘corporation’

(1) the college of cardinals and

(2) general (or ecumenical) councils of the Church.

The cardinals were the nearest equivalent of a papal chapter.  However, the cardinals’ claim to jurisdiction was weak, since the sacred college was essentially a high mediaeval development, unsupported by any ancient tradition in the Church (op.cit, p.68).

Ecumenical councils had a much stronger historical claim to universal jurisdiction, and some canonists were prepared to admit of cases in which the Pope was bound by conciliar decisions (p.49).

Modern Roman Catholic law provides that the Holy See itself (the sedes) is the corporation, and not the incumbent Pope (canon 113.1).  Moreover, the incorporation of the Holy See is by divine law, not mere human law.  The term Apostolic / Holy See is also deemed to include the Roman curia (canon 361).

It has been suggested that the identification of the curia with the Holy See has no theological significance, but is simply for administrative convenience, ‘a simplified way of identifying the agencies to which recourse must be made when a matter is reserved to the Apostolic See’ (Coriden, Green and Heintschel, p.300).  It should be viewed ‘from a canonical rather than a theological perspective’.  Thus no divine law is claimed for the curia.

The incorporation of the Holy See rather than the Pope personally is consistent with the general rule of Roman Catholic law, since the sedes is a divinely-constituted, and therefore ‘spiritual’, thing.  Things are capable of incorporation as well as people.  It affirms the divine origin of the papacy even when the Holy See is vacant, and even when it is occupied (as it undoubtedly has been on occasions) by an incumbent who is manifestly unworthy.  It affirms that the papacy is a trust, not the absolute possession of the incumbent.

The corporate status of bishops and incumbents (parish priests) is another major difference between English law and Roman Catholic law.  Coke and Blackstone were clear that dioceses and parishes have no legal personality of their own.  In English law a diocese is ‘a legal division of a province and the circuit of a bishop’s jurisdiction’ (Halsbury’s Laws, 5th edition 2011, vol 34, para 164, citing Coke).  An ecclesiastical parish is merely ‘a district’ (para 262, citing Blackstone).

In Roman Catholic law, as in English law, dioceses and parishes are usually (though not always) constituted on a territorial basis.  However, in contrast to English law, both also have a corporate identity.

Thus a diocese is ‘a portion (portio) of the People of God’ (canon 369), not just a territory or jurisdiction.  Likewise a parish is defined in corporate terms as ‘a certain community of Christ’s faithful … within a particular Church’ and is a corporation at law (canon 515).

However, the parish priest ‘acts in the person of the parish’ (parochus personam gerit paroeciae) in all legal matters (canon 532).  It is possible to see a resemblance between this status and that of the English parson, who was so called because he was persona ecclesiae in the parish.  He incorporated the Church in his own person.

The Limits of Ecclesiastical Incorporation

Modern Roman Catholic law affirms that the Catholic Church as a whole, like the Holy See, is a corporation by divine law (canon 113.1).

Coke explained the corporate nature of the Church of England at the Reformation:

‘By the ancient laws of this realm … England is an absolute empire and monarchy consisting of one head, which is the King, and of a body politic … which the law divideth into … the clergy and the laity, both of them next and immediately under God, subject and obedient to the head …’ (Cawdrey’s case (1591) 77 English Reports 1, at p.10).

Centuries later, the Church of England’s identity was discussed in the case of Marshall v Graham (1907) 2 King’s Bench 112.  This may have been the last judicial attempt to define the Church of England.  The case concerned the prosecution of two fathers for withdrawing their children from school on Ascension Day.

In their defence, the fathers pleaded (successfully) a statutory provision that permitted a child to be withdrawn from school ‘on any day exclusively set apart for religious observance by the religious body to which its parent belongs’ (p.113).  Thus the statute did not refer to the Church of England specifically, but the fathers claimed to belong to the Church of England.

Mr Justice Phillimore stated that ‘the accepted legal doctrine is that the Church of England is a continuous body from its earliest establishment in Saxon times’ (p.126). 

Why is this the accepted legal doctrine?  Phillimore J cited Middleton v Crofts (1736) 26 English Reports 788, in which ‘it was said the canons of 1603 might be enforced so far as they were declaratory of the established canon law before the Act of Submission [of 1533, i.e before the Reformation]’.  He also cited his father’s judgment in Martin v Mackonochie (1868) Law Reports 2 Admiralty and Ecclesiastical 116, which referred to ‘the identity in law of the Church of England before and after the Reformation’.

A modern Church of England liturgy confidently asserts that ‘We are the Body of Christ.  By the one Spirit we were all baptised into the one Body’.  This echoes the religious belief of the early Church, as described by Tierney.

However, this simple faith in the modern Church’s continuing corporate identity is not shared by Halsbury’s Laws.  There is something of a divergence between liturgy and law on this point.

The modern statutory corporations of the Church of England are plainly necessary for the Church to hold and deal with property.  Corporations sole, by contrast, are idiosyncratic and anachronistic.  However, there seems to be little connection between the Church of England’s corporations, whether ancient or modern, and its religion.

Moreover, neither species of corporation has much to do with the Church’s lay worshippers, the vast majority of whom do not belong to any ecclesiastical corporation, or indeed with most of its clergy.  Team vicars, assistant curates and priests-in-charge are not corporations sole, only the senior clergy.

Halsbury’s Laws offers a definition of a ‘church’ as ‘the quasi-corporate institution which carries on the religious work of the denomination whose name it bears’ (para 2, emphasis supplied).  Later it says that

‘The Church of England … may be considered as an aggregate of individuals.  This aggregate evades easy definition or description … the Church of England as such is not a corporation’ (para 51, emphasis again supplied).

Phillimore J was no doubt correct to conclude that the ‘body’ of the modern Church of England is the same in English law as that of the mediaeval Church, but it still bears little resemblance to the one body politic ‘under God’ described by Coke.  The religious body has not disappeared in modern times but, as Halsbury implies, it has become somewhat decomposed.  That is the effect of secularisation.

Coke’s concept of a body politic united under the headship of the Monarch, and his definition of a diocese as a territory and circuit of jurisdiction, also allow little scope to the now-fashionable notion of the bishop as the personification or representative of the Church.

In Free Church of Scotland v Lord Overtoun et al (1904) Appeal Cases 515, the House of Lords described a ‘church’ as a ‘religious community’, rather than as a religious body (pp.612-13).  Generally English (and British) law seems to treat Church communities as associations rather than corporations, a looser configuration of persons.

Ecclesiastical Law and Disestablishment

The Welsh Church Act 1914, which provided for the disestablishment of the Church in Wales, was discussed by the House of Lords in the case of Representative Body of the Church in Wales v Tithe Redemption Commission (1944) 1 All England Reports 710, in which they overruled the decision of the Court of Appeal in Tithe Redemption Commissioners v Commissioners of Church Temporalities (1943) 1 All England Reports 605.

Interestingly, the law lords who decided the Tithe Redemption case were headed by the then Lord Chancellor, Viscount Simon, who, as the Liberal Attorney-General Sir John Simon, had successfully promoted the bill which became the Welsh Church Act.

The Tithe Redemption case prompted Lord Denning to formulate his famous thesis on the division of ecclesiastical law into ‘general’ and ‘technical’ law in an article ‘The Meaning of Ecclesiastical Law’ (1944) Law Quarterly Review, vol 60, p.235.  This article has been discussed elsewhere.  Lord Denning defined ‘technical’ ecclesiastical law as ‘the law administered by ecclesiastical courts and persons’ (p.236), though his analysis concentrated rather more on the courts than the persons.

As Lord Denning noted, the Welsh Church Act does not contain any definition of ecclesiastical law.  Nor did the Irish Church Act 1869, which effected the disestablishment of the Church of Ireland and provided the model for the Welsh Church Act.

Despite the lack of a definition, Lord Denning argued that the structure of the Welsh Church Act supported his suggested distinction between technical and general ecclesiastical law.  He noted that the Act makes specific provision for certain matters ‘which would fall within ecclesiastical law in a general sense … such as rights of patronage, vesting of Church property and so forth’ (p.236).  Where specific provision is lacking, any ‘ecclesiastical  law’ referred to in the Act must be restricted to that administered by ecclesiastical courts and persons.

S.3 of the 1914 Act refers to ecclesiastical law in the following terms:

‘ecclesiastical courts and persons … shall cease to exercise any jurisdiction, and the ecclesiastical law of the Church in Wales shall cease to exist as law’ (s.3(1))

‘ecclesiastical law shall include … such law so far as it is embodied in the Church Discipline Act 1840, the Public Worship Regulation Act 1874, the Clergy Discipline Act 1892 or the Ecclesiastical Dilapidations Acts 1871-2, or any other Act of Parliament’ (s.3(4))

S.38(1) of the Act defines ‘ecclesiastical person’ as ‘the holder of any ecclesiastical office who is in holy orders’.

It must be acknowledged that s.3, considered in isolation, does tend to support Lord Denning’s analysis.  It seems to identify ecclesiastical law with clergy and Church courts.  The Acts of Parliament referred to in s.3(4), which have now all been repealed, regulated the functions of the clergy.

However, it is argued s.3 has to be understood in the context of the Welsh Church Act as a whole.  The long title of the Act makes clear that the purpose of the Act was

[1] ‘to terminate the establishment of the Church in Wales … and

[2] ‘to make provision in respect of the Temporalities thereof and …

[3] ‘other purposes in connection with [1 and 2]’.

S.1 of the Act provides that ‘the Church in Wales … shall cease to be established by law’.  ‘Established by law’ means ‘constituted by law’.  ‘Temporalities’ refers to property and property rights.

The Welsh Church Act therefore had a twofold purpose

(1) to reconstitute the Church in Wales on a voluntary basis and

(2) to dispose of its property.

The references to ‘ecclesiastical law’ in s.3 of the 1914 Act should therefore be understood in the context of the Church’s establishment.  The ‘establishment’ of the Church is its constitutional structure, its organisation.  The law of the Church regulates its function.  The function of the Church in Wales, as of any Church, is the administration of the Christian religion.  Ecclesiastical law regulates the administration of the Christian religion.

Thus the 1914 Act reconstituted both the Church’s

(1) structure / organisation and

(2) its function

on a voluntary basis.  Henceforward the members of the Church in Wales would decide its organisation and function on the basis of rules agreed between themselves, though subject to the secular law.

Thus the 1914 Act made a distinction between the Church’s religion and its property, not between its ‘general’ and ‘technical’ law.  It is rather absurd to divide the administration of the Christian religion into ‘general’ and ‘technical’ aspects.

It may indeed be difficult, even impossible, to define the exact boundaries of ecclesiastical law.  Where does the administration of religion end and secular governance begin? 

The House of Lords specifically declined to answer this question in the Tithe Redemption case.  ‘It is not … necessary to pronounce finally on these niceties’ (Viscount Simon, p. 713).  ‘I am not clear as to the precise effect of the very general words of s.3’ (Lord Wright, p.717).  ‘I do not desire to dogmatise as to the effect of s.3’ (Lord Porter, p.718).  ‘I do not think it necessary to determine the exact scope of that ‘ecclesiastical law’ … which by s.3 … is to cease to exist as law’ (Lord Simonds, p.720).

The scope of ecclesiastical governance was sharply reduced in the mid-19th century, before the Irish Church Act and the Welsh Church Act were passed.  By 1914 it was almost exclusively liturgical, restricted to activity within the church and churchyard.  However, ecclesiastical governance continued to engage rights of property.  (It still does, of course.)  The function of the 1914 Act was therefore to regulate the future relationship between ecclesiastical governance and property.

As its name implies the Tithe Redemption case was concerned with tithes (or tithe rentcharge, which was derived from tithes).  Tithes were connected to the administration of religion, hence to ecclesiastical governance, because they were used to pay for the maintenance of the Church.  A tithe owner was liable at common law to repair the chancel of the parish church.

But, as Lord Wright noted, tithe or tithe rentcharge is ‘an incorporeal hereditament … a well-known type of real property’ (p.717).  Ownership of tithe rentcharge and the liability to pay it are questions of property law, rather than ecclesiastical law.

The Welsh Church Act provided, at s.8, that tithe rentcharge in ecclesiastical ownership should in effect be secularised.  Ownership was to be transferred from the Church to the Welsh local authorities and to the University of Wales.

However, s.28(1) provided that

‘Nothing in this Act shall affect … the liability of any lay impropriator of any tithe rentcharge to repair any ecclesiastical building [i.e the chancel], but a [local authority] shall not … be liable for the repair of any ecclesiastical building’.

Thus s.28(1) expressly exempted the local authority tithe rentcharge from the liability to repair the chancel.  However, no such exemption was granted to the University, or to any other lay owner (‘impropriator’) of tithe rentcharge.

The Court of Appeal reasoned that chancel repair was a duty imposed by ecclesiastical law, and hence was governed by s.3 of the 1914 Act.  This meant that the duty had ceased to be a legal duty where the tithe rentcharge was in ecclesiastical ownership, because ecclesiastical law had ceased to exist as law after Disestablishment.

The University had inherited tithe rentcharge that was formerly in ecclesiastical ownership, at Disestablishment.  It could not therefore be liable for chancel repair.  The legal duty to repair the chancel could only attach to tithe rentcharge that had been in lay ownership before Disestablishment.

The House of Lords disagreed with this analysis.  It held that the question of chancel repair liability was governed by s.28(1), not by s.3.  The University was a ‘lay impropriator’ within the meaning of s.28(1), and therefore liable for chancel repair.  The exemption granted to local authorities did not extend to the University.  If chancel repair had ceased to be a legal duty after Disestablishment, the exemption in s.28(1) would not have been necessary.

Tithe rentcharge was actually abolished, or ‘extinguished’, by the Tithe Act 1936, passed over 20 years after the Welsh Church Act.  In consequence, the liability of owners of tithe rentcharge for chancel repair was also abolished.  The 1936 Act provided for a system of compensation.  Former lay owners of tithe rentcharge received compensation for the loss of their ‘incorporeal hereditament’.  However, the Church also received compensation, because it had lost a legally enforceable right to the repair of its chancels.

Thus the practical effect of the decision in the Tithe Redemption case was that the Church in Wales, through its Representative Body, received compensation under the Tithe Act 1936, because it had lost the legal right to require the University of Wales to repair some of its chancels.

Lawful Authority and the Jus Liturgicum

Mr Justice Vaisey, ‘Lawful Authority’, a memorandum appended to a Church of England report The Canon Law of the Church of England (SPCK, London, 1947, pp.215-222)

This is a discussion of the famous ‘exceptive words’ introduced into the Declaration of Assent by the Clerical Subscription Act 1865.  The words appeared in a declaration required of clergy that

‘in public prayer and administration of the sacraments I will use the form in the [Book of Common Prayer] and none other, except so far as shall be ordered by lawful authority‘.

The original Declaration did not contain any exceptive words.  It bound the clergy to use only the forms contained in the Prayer Book and none other.  The exceptive words therefore apparently qualified the original Declaration.

Vaisey’s principal conclusions on the exceptive words were twofold:

(1) ‘the three words, ‘ordered’, ‘lawful’ and ‘authority’, both separately and as … conjoined, could hardly be more ambiguous’ (p.218), and that ‘precise definition of lawful authority is impossible’ (p.221) and

(2) consequent on (1), the ambiguity and imprecision of the exceptive words had the effect of altering and relaxing the regulation of public worship to some extent.

Specifically, the words authorised or recognised ‘deviations allowed by such episcopal authority as can be brought within the Bishop’s power to ‘appease diversity and resolve doubts’ referred to in the Book of Common Prayer (p.219).  They also allowed the ‘familiar and generally accepted abridgements [which] must be within the discretion of the parish priest … for matters of minor moment’ (p.220).

Vaisey J’s analysis was a brave attempt to reconcile the law and practice of public worship.  The judgments of the Privy Council in the 19th century and Parliament’s rejection of a revised Prayer Book in the 1920s had rendered the law of public worship unenforceable.  The modern law was not finally settled until the Worship and Doctrine Measure 1974.  Thus the tension between liturgy and law was still acute at the time Vaisey wrote. 

Vaisey sought to resolve the impasse by arguing that bishops and other Church authorities possessed an inherent power, known as the jus liturgicum, to regulate public worship, and that this power was consistent with the Act of Uniformity 1662.  To support this thesis he cited

(1) the exceptive words in the 1865 Act and

(2) the reference in the Prayer Book itself to the bishop’s authority to resolve doubts.  

Yet the thesis is questionable.  The phrase ‘lawful authority’ may be a tautology (authority is by definition lawful), but that does not render it meaningless.  A complete, exhaustive definition of lawful authority may well be impossible, but it is far from impossible to decide whether a particular liturgical practice or form of service has lawful authority or not.

It should also be remembered that Vaisey J was writing some 80 years after the exceptive words became law.  It is surprising that the 19th century courts had no apparent difficulty with the words, if their meaning was as difficult as he thought.  

As Vaisey acknowledged, there are other interpretations of the exceptive words.  The words refer to ‘lawful authority’, not ‘the lawful authority’, thus implying that there may be more than one authority capable of regulating public worship.  The Act of Uniformity 1662 provided that, in the prayers for the Royal Family, the relevant names could be altered ‘according to the direction of lawful authority’ (s.21, now repealed).  That authority was the Monarch in Council rather than the bishops.  The exceptive words can also be interpreted as applying to any authority which might be constituted in the future.  However, the exceptive words did not per se constitute a new authority.

The passage in the Book of Common Prayer cited by Vaisey provided that

‘for the resolution of all doubts, concerning … how to understand, do and execute the things contained in this Book … the Bishop … by his discretion shall take order for the quieting and appeasing of the same: so that the same order be not contrary to anything contained in this Book.  And if the Bishop … be in doubt, then he may send for the resolution thereof to the Archbishop’ (‘Concerning the Service of the Church’, emphasis supplied).

This power of the Bishop (and Archbishop) is quasi-judicial in character.  The Bishop is required to interpret the contents of the Prayer Book where necessary, and thereby resolve any doubts or disputes over their meaning.  However, it is clearly stated that the Bishop’s interpretation must not contradict the provisions of the Prayer Book.

The jus liturgicum suggested by Vaisey, by contrast, is quasi-legislative in character.  It suggests a power in the bishop, or even the individual clergyman, to relax or modify the prescriptions of the Prayer Book.

The suggestion that bishops, let alone clergy, possess some inherent power to regulate public worship was categorically rejected by the Privy Council in the 19th century cases.  Nor did it impress the celebrated liturgical scholar and Anglican, Dom Gregory Dix, writing almost contemporaneously with Vaisey:

‘We have heard a lot in England of late years of the bishop’s jus liturgicum.  The term is entirely unknown to the canon law or to any writer in any country before the later 19th century, when it comes into use among a certain group of Anglican ecclesiologists, who invented it as a means of lifting the dead hand of Parliamentary statutes off Anglican worship’ (The Shape of the Liturgy (1945), p.55).

Law and Religious Doctrine

‘the courts should not merely be religiously neutral: they should not enter into matters of religious doctrine at all.’

Editorial, Ecclesiastical Law Journal, vol 12, no.3, September 2010, p.264

This statement, coming as it does from the editor of a legal journal dedicated to ecclesiastical law, is frankly shocking, even if the ‘courts’ referred to are the secular courts only, rather than the ecclesiastical courts.

The function of the courts concerning Acts of Parliament and other legislation, also contracts, wills and trusts, is always the same.  It is to give effect to the intention of those who made them, i.e legislators, contracting parties, testators, founders or settlors.

It therefore follows that if a statute, contract or trust imports a religious doctrine into its provisions, the court may be obliged to examine that doctrine, in order to give effect to the statute, contract or trust.  Such examination will not involve any judgment of whether the doctrine is true or false (the courts have always recognised that they must be ‘neutral’ on this question), but it will involve a judgment about the intention of those who made the statute, contract or trust.

The Human Rights Act 1998 recognises the subject’s qualified right ‘to manifest his religion or belief in worship, teaching, practice and observance’ (schedule 1.1, Article 9).  The courts are required to protect this right against public authorities who would infringe it (ss.6 to 8).  It is hard to see how they can do this without first ascertaining the religious belief that is the subject of the right.  If the subject’s religious belief is not properly understood, there is no way of knowing whether or not the public authority has infringed the subject’s right.

Questions of religious belief may be factually complex.  However, courts routinely assess highly complex evidence.  Every day of the week judges with no medical qualifications assess medical evidence in personal injury and clinical negligence cases.  They assess evidence concerning construction engineering, intellectual property and foreign law.  It is a wholly unwarranted suggestion that religious doctrine is somehow uniquely difficult and impenetrable.

Modern Church trusts have been deliberately worded to avoid references to religious doctrine, in order to avoid a repetition of the famous (or infamous) Free Church case, which is discussed separately.  However, this does not justify the dogmatic assertion in the editorial.  Of course, the court must not imply a religious doctrine into a trust when this was not the settlor’s intention.  That would be incompatible with its function of giving effect to the settlor’s intention.  But that does not justify an a priori rule that the court will never investigate a religious doctrine in any circumstances. 

It must be acknowledged that strongly held religious beliefs have sometimes prompted very weak legal claims.  The obiter dicta emphasizing the limits of the court’s doctrinal responsibilities may reflect an understandable judicial impatience with such claims.

However, weak claims motivated by religious belief should still be treated exactly the same as other weak claims.  An evidentially weak claim (as distinct from an evidentially complex claim) will fail the standard of proof.  If a claim  is very badly formulated or discloses no reasonable cause of action, it can be struck out.  If a provision in a contract or trust is so vague or obscure that it is impossible to ascertain the intention behind it then it will fail for uncertainty.